Veera Venkata Subbarao and another vs Venkata Subbaraju and others

Alladi Kuppuswami, J.—The petitioners herein are the plaintiffs in an un-registered suit (S.R. No. 1236/74) on the file of the Subordinate Judge''s Court, Amalapuram. The plaintiffs filed the suit for partition of the plaint schedule properties into 5 equal shares and for delivery of separate possession of one such share to the plaintiffs and for other reliefs.

The case of the plaintiffs is that defendants 1 to 5 are brothers who jointly own the properties described in the plaint schedule each having an undivided 1/5th share. The plaintiffs obtained a money decree against the 3rd defendant and in execution of the said decree, brought his 1/5th undivided share to sale. In the court auction the plaintiff purchased his undivided 1/5th share for a sum of Rs. 7,060/-. Thus the plaintiffs have become the owners of the undivided 1/5th share in the suit scheduled properties. Under these circumstances the plaintiffs alleged that they are co-owners in respect of the plaint schedule properties along with defendants 1, 2, 4 and 5 having an undivided 1/5th share and they are in joint possession of the said property. Though they have been demanding defendants 1, 2, 4 and 5 they agree to partition and to give separate possession of the 1/5th share. The defendants have been postponing. Hence the plaintiffs are obliged to file this suit.

The plaintiffs paid a fixed court-fee u/s 34(2) of the Court Fees Act. An objection was raised by the office that the plaintiffs had to pay the court-fee on ad valorem basis. This question was considered by the learned Subordinate Judge, who by his order dated 11-7-1974 held that the plaintiffs had to pay ad valorem court-fee. The plaintiffs have preferred this revision petition against the said order.

The Court below relied upon the decision of the Bench of the Madras High Court in Nagendram v. Appayya, ( 1947 ) 1 Mad LJ 15 : (AIR 1947 Mad 285). When this Revision Petition was heard by Justice Raghuvir the petitioners relied upon a decision of this Court in S. R. No. 9533 of 1968 (Andh Pra), where it was held that fixed court-fee had to be paid. Justice Raghuvir, therefore, directed that this matter may be heard by a Division Bench.

The only question for consideration before us is whether ad valorem court-fee is payable on the plaint or a fixed court-fee. The relevant section of the Court Fees Act is Section 34 which is as follows:

Partition suits: 1. In a suit for partition and separate possession of a share of joint family property or of property owned, jointly or in common, by a plaintiff who has been excluded from possession of such property, fee shall be computed on the market value of the moveable property or three-fourths of the market value of the immovable property included in the plaintiffs share.

In a suit for partition and separate possession of joint family property or property owned, jointly or in common, by a plaintiff who is in joint possession of such property; fee shall be paid at the following rate:-

The contention of the petitioners is that the present suit comes within Section 34(2) as the plaintiff is in joint possession of the property along with the defendants 1, 2, 4 and 5. In our view this contention is untenable. It is settled law that a purchaser of an undivided interest of coparcenary is neither a co-owner nor a joint owner entitled to joint possession along with other members of the family. Coparcenary can only subsist among the members of a Hindu undivided family and the principle is that the possession of one coparcener is the possession of all. This principle has no application as between a purchaser from one of the coparceners and other members of the family. The purchaser cannot in any sense be described as a person in joint possession actually or even constructively along with the members of the family. He cannot be regarded as a tenant in common. In Nagendram v. Appayya, (1947) 1 Mad LJ 15 : (AIR 1947 Mad 285) during the pendency of a suit for partition the plaintiff transferred his rights to a stranger who was then added as an additional plaintiff. The plaintiff decided not to prosecute the suit as originally laid by him and allowed himself to be transposed as a defendant. It was held that the suit ceases to be a suit for partition by one coparcener against the other coparceners. It became a suit by a person claiming to be an alienee from a coparcener for partition against the other members of the family. In those circumstances it was held that the alienee could in no sense be described as a person in joint possession actually or even constructively along with the other members of the family. Hence the transferee had to pay ad valorem court-fee. In this case also the plaintiffs are purchasers of an undivided share of a coparcenary, though the purchase was made in a court auction and not by private sale. The Court below rightly applied the above decision to the facts of the case and held that ad valorem court-fee is payable. It is true that where an alienee is put in possession of a specific item of coparcenary property and he filed a suit for partition of all the properties of the joint family and for working out the equity of allotment of the particular property to the share of the alienating coparcener it has been held that such a suit cannot be treated to be one for possession and ad valorem court-fee need not be paid (Vide in In Re: K. Ranga Reddy following Vetcha Subba Rao and Another Vs. Vetcha Veeraraju,

Similarly, it has been held that where an alienee has purchased the property from a divided member, fixed court-fee will be payable as he will be a co-owner in joint possession along with others. But the present case is not either of one of those cases. It is the case of a purchaser of an undivided interest of a member of a family who is out of possession and institutes a suit for partition and possession of his share. This case in our opinion clearly comes within the principle of Nagendram v. Appayya, 1947 1 Mad LJ 15 : (AIR 1947 Mad 285). The petitioners place reliance on the unreported decision of this court in S.R. No. 9533 of 1968, D/- 12-2-1968 (Andh Pra). In that case it was found that the plaint allegations clearly showed that the plaintiffs claim to be in joint possession along with the defendants. It was held that in such a case Section 34(2) of the Court Fees Act applies and fixed court-fee is payable. It was observed that Section 34(1) applies only to cases where the plaintiff was excluded from possession and not to cases where the plaintiff claims to be in joint possession. We sent for the records in that case which was subsequently numbered as Second Appeal No. 112 of 1969. We find in that case that it was alleged that there was a division between the members of the joint family, but certain properties were kept joint. Thereafter the plaintiff purchased 2/3rd share of the same of the defendants in the property that was kept joint by private sale. It was alleged that the plaintiff and the defendants were in joint possession and enjoyment of the suit site and one Nepalam tree was also grown in it. The plaintiff did not want to continue in joint enjoyment and called upon the defendants to divide the site. But the defendants refused division. It is thus seen from the allegations in the plaint that the alienor and his brothers were divided and therefore co-owners in respect of the property and the plaintiff was purchaser of 2/3rd share. Further it was also alleged that the plaintiff was in joint possession and wanted partition. The decision relied, in our view, was justified having regard to the particular facts of that case. We do not read this decision as holding that in every suit for partition by an alienee of a coparcenary the fixed Court-fee is payable merely because the plaintiff states in his plaint that he was in joint possession. As has already been pointed out by us an alienee from a coparcener cannot be said to be in joint possession either as a coparcener or as a tenant-in-common with the other members of the family.

Sri Poornaiah drew our attention to the plaint in this case also and submitted that even here there is an allegation by the plaintiffs that they are in joint possession. We have already set out the substance of the plaint. The plaintiffs have stated in paragraph 4 that they purchased 1/5th undivided share of the 3rd defendant in Court auction and have become the owners of the said undivided share. Then they proceeded to state that they are co-owners in respect of the properties jointly along with defendants 1, 2, 4 and 5 and they are in joint possession of the property. This is only what according to them is the legal effect of the purchase of the 1/5th share. According to the plaintiffs by such purchase they became co-owners and they were in joint possession of the said property. This stand is obviously untenable in law as has been pointed out by us earlier. There is no statement in the plaint to the effect they were either put into joint possession after their purchase or they continued to be in joint possession later.

We agree with the court below that Section 34(2) has no application and ad valorem court-fee has to be paid. The revision petition is dismissed but in the circumstances without costs. Time for payment of court-fee granted till one week after the reopening of the court after summer vacation.